Liberty vs. Equality

My FindLaw column for today describes the difference between the majority and dissent in Parents Involved in Community Schools v. Seattle School District No. 1 as playing out the tension between the "anti-caste" and "color-blind" principles of Justice Harlan's dissent in Plessy, with Justice Kennedy straddling the divide. I link these respective positions to egalitarian and libertarian conceptions of anti-slavery. Although I don't put the point quite this way in the column (because of the nature of the audience), I might have also associated these respective views with the "anti-subordination" and "anti-discrimination" understandings of the Fourteenth Amendment. I suggest that there is no clearly right answer in a debate between these pairs of principles, but I nonetheless conclude that the Parents Involved dissent has the virtue of leaving this unanswerable conundrum to the democratic process.

Here I want to respond to an objection I anticipate from those who favor the color-blind/libertarian/anti-discrimination side of this debate. The objection goes like this:

You people on the other side of this question are full of it. You don't believe in judicial restraint in other contexts. Indeed, you don't even believe in judicial restraint in this context. If you had the votes you would impose your own views in the name of the Constitution.

To which I respond:

1) Don't blame me. I actually prefer a version of the anti-discrimination principle to the anti-subordination principle. See my article on the subject here.

2) Actually, it really isn't true that the anti-subordination folks have simply beat a tactical retreat. They did not say that race-based affirmative action by institutions with no prior history of race discrimination was constitutionally required, nor did liberal Justices ever push hard for a constitutional rule that would have treated racially disparate impact as triggering some sort of heightened scrutiny. The charge that the liberals don't care for judicial restraint more generally is certainly true, but that's true of the conservatives too. So the name-calling is a wash.